KATHRYN GENEVIEVE SAVIAK, APPELLANT,
v.
BILL GUNTER, STATE TREASURER AND INSURANCE COMMISSIONER, AND DEPARTMENT OF INSURANCE, STATE OF FLORIDA, APPELLEES
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An insurance agent challenged an emergency suspension of her license by the Department of Insurance, arguing the statute was unconstitutional for failing to provide a pre-suspension adversary hearing with witness testimony and cross-examination rights. The court affirmed the suspension, holding that the Constitution does not require a full formal hearing before emergency suspension if a plenary hearing follows, and that the Department's emergency justification was facially sufficient.
The statute is not facially unconstitutional, as the Constitution does not require a full formal hearing tantamount to a Section 120.57(1) proceeding before emergency suspension; it is sufficient that the opportunity for hearing was in fact provided. The emergency suspension order sufficiently states particularized facts showing immediate danger to public welfare.
[1] A statute authorizing emergency suspension of a license is not facially unconstitutional for failing to explicitly require an adversary hearing prior to suspension, provi…
[2] The constitutional requirement for a pre-termination hearing does not necessitate a full, formal hearing equivalent to a plenary proceeding before an emergency license su…
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Join FLexlaw to unlock all legal intelligence“Assuming without deciding that Saviak's property interest in her license is such as to require prior notice of and some opportunity to rebut the charges on which an emergency suspension is to be predicated, with a plenary hearing soon to follow, the Constitution does not require the full-pledged formal hearing, tantamount to a Section 120.57(1) proceeding, to which Saviak lays claim.”
Establishes the constitutional standard for emergency suspension: prior notice and some opportunity to rebut charges are required, but not a full formal hearing if a plenary hearing follows.
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Join FLexlaw to unlock all legal intelligenceOn December 13, 1978, the Department of Insurance attempted to investigate Saviak's books and records to determine the extent of Insurance Code violat…
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PER CURIAM.
Appealing from an emergency order of the Department of Insurance suspending her insurance agent license on December 29, 1978, pending a full revocation hearing soon to follow, Saviak urges that Section 120.-60(6), Florida Statutes (1978 Supp.) is unconstitutional in that it does not provide in terms for an adversary hearing, with attendant right to call witnesses and cross-examine accusers, before an emergency license suspension. Alternatively Saviak contends that the Department’s emergency justification statement is insufficient on its face.
Assuming without deciding that Saviak’s property interest in her license is such as to require prior notice of and some opportunity to rebut the charges on which an emergency suspension is to be predicated, with a plenary hearing soon to follow,1 the Constitution does not require the full-pledged formal hearing, tantamount to a Section 120.57(1) proceeding, to which Saviak lays claim. See Mathews v. Eldrige, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Whatever pretermination hearing may be constitutionally required, Section 120.60(6) is not facially invalid for failing to require that hearing; it is sufficient that the opportunity for hearing was in fact provided. Saviak relies on emergency suspension order itself, and that alone, to demonstrate that she had no opportunity to rebut the charges before the suspension order was entered. The order does not support Sav-iak’s claim. In fact it recites:
The Department of Insurance attempted on December 13, 1978, to investigate the books and records of Respondent to ascertain the extent and scope of the violations of the Insurance Code. The Department of Insurance, pursuant to the Insurance Code, promulgated General Charges and an Order, ordering Respondent to produce at once records, documents or transactions pertaining to or effecting insurance affairs, account ledg ers, checkbooks, records or receipts. Said charges were duly served upon Respondent but she or her employees have wilfully refused to permit examination, thereby obstructing the department from conducting a lawful examination.
On its face the emergency suspension order sufficiently states particularized facts showing an immediate danger to the public welfare in the continuation of Sav-iak’s insurance license during the period before the scheduled plenary hearing on the proposed revocation of her license. Sections 120.60(6), 120.54(9)(a). The emergency suspension order recites facts showing that, despite policing efforts by the Department, Saviak was and continued to be engaged in withholding remittance of insurance premiums to the insurers, resulting in the cancellation of the automobile liability insurance of her insureds. The emergency order meets the standard of Commercial Consultants Corp. v. Dept, of Business Regulation, 363 So. 2d 1162 (Fla. 1st DCA 1978).
Our stay of the suspension order was vacated by order entered August 10, 1979. The emergency suspension order is now
AFFIRMED.
ROBERT SMITH, Acting C. J., and ERVIN and BOOTH, JJ., concur. . See Tauber v. State Board of Osteopathic Medical Examiners, 362 So. 2d 90 (Fla. 4th DCA 1978).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (18 total)
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Witmer v. Dep't of Bus. & Prof'l Reg., 631 So. 2d 338 (Fla. 4th DCA 1994)…ng is required prior to the emergency suspension. Lerro v. Department of Professional Regulation, 388 So. 2d 47, 48 (Fla. 2d DCA 1980). These procedures have been found to be sufficient to protect the licensee’s due process rights. Saviak v. Gunter, 375 So. 2d 1080, 1081-82 (Fla. 1st DCA 1979). In its amended response, the department alleges that it had offered to set a hearing nine days after the suspension took effect, but that the petitioner rejected the offer and filed his petition for review instead. Of c…
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Aurora Enters., Inc. v. State, 395 So. 2d 604 (Fla. 3d DCA 1981)…erdale v. Campbell, 362 So. 2d 716 (Fla.4th DCA 1978); and (c) that the findings recited in the order are neither sufficiently articulated nor justify the emergency suspension. Lerro v. Department of Professional Regulation, supra; Saviak v. Gunter, 375 So. 2d 1080 (Fla.1st DCA 1979); compare, Commercial Consultants Corp. v. Department of Business Regulation, 363 So. 2d 1162 (Fla.1st DCA 1978). . We quoted and applied the same language in West v. Board of County Commissioners, Monroe County, supra. . (3) Unl…
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Lerro v. Dep't OF Prof'l Reg., 388 So. 2d 47 (Fla. 2d DCA 1980)…ency rule or order, but only to the period of time that an emergency rule remains effective. We therefore hold that the order remains in effect pending the formal suspension or revocation hearing and final disposition thereof.2 See Saviak v. Gunter, 375 So. 2d 1080 (Fla. 1st DCA 1979), and Tauber v. State Board of Osteopathic Medical Examiners, 362 So. 2d 90 (Fla. 4th DCA 1978), cert. denied, 368 So. 2d 1374 (Fla.1979). Accordingly, the DPR’s order temporarily suspending Lerro’s license is AFFIRMED. OTT and…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mathews v. Eldridge, 424 U.S. 319 (U.S. 1976)
- Commercial Consultants Corp. & Linene Woods, Inc. v. Dep't of Bus. Reg., 363 So. 2d 1162 (Fla. 1st DCA 1978)
- Tauber v. The State Bd. OF Osteopathic Med. Exam'rs, 362 So. 2d 90 (Fla. 4th DCA 1978)